IN THE COURT OF APPEALS OF IOWA
No. 14-1845
Filed March 9, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK EUGENE ROBINSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
A defendant appeals his conviction for robbery in the second degree.
CONVICTION CONDITIONALLY AFFIRMED; RULING ON MOTION
VACATED; REMANDED WITH DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Martha E.
Trout, Assistant Attorneys General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.
In this appeal from his conviction for second-degree robbery,1 Mark
Robinson alleges the State did not offer sufficient proof he assaulted a clerk to
carry out his intent to steal cigarettes from a convenience store. He also
contends the district court applied the wrong standard to his motion for a new
trial. We conclude substantial evidence supports his robbery conviction, but we
vacate the court’s ruling on Robinson’s motion for new trial and remand for a
determination of whether the verdict was against the weight of the evidence.
I. Facts and Prior Proceedings
The jury could have found the following facts from the State’s evidence
presented at trial. On the evening of January 1, 2014, Mark Robinson drove
away in a Ford Taurus that the owner had left idling in the Forest Mart parking lot
on University Avenue in Des Moines. About half an hour later, Robinson entered
the Kum & Go on Hickman Road and asked the clerk working behind the counter
for two cartons of cigarettes.
The clerk—who was working alone—retrieved the cartons, scanned in the
prices, and rang up the sale. She kept her hand on the cartons while Robinson
tried to swipe his credit card. Robinson could not complete the transaction
because he held the card upside down. The clerk suggested he turn it around,
but instead of reswiping the card, Robinson lunged toward her. The clerk
testified Robinson “almost jumped over the counter”—grabbing the cigarette
1
Robinson also appeals from his conviction for operating a motor vehicle without the
owner’s consent, but neither issue raised in his appellant’s brief challenges that offense.
Accordingly, that conviction will stand undisturbed.
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cartons out of her hand. The clerk recalled being scared and, in response to
Robinson’s sudden movement, she “jumped back, not knowing what he [was]
going to do.”
After taking the cartons from the clerk, Robinson placed one hand in his
pocket—acting “like he had a weapon” to harm her—and demanded more
cigarette cartons. He ordered her to “give me two more right fucking now.” The
clerk complied with his demand, and he ran out of the store. Investigators
retrieved the surveillance video from several cameras positioned around the
convenience store. The prosecution presented the video to the jury during
Robinson’s trial. The jury convicted Robinson of robbery in the second degree.
The district court sentenced Robinson to an indeterminate ten-year prison term
with a seventy-percent mandatory minimum. He challenges only his robbery
conviction on appeal.
II. Scope of Review
We review Robinson’s challenge to the sufficiency of the evidence for
correction of legal errors. See State v. Keeton, 710 N.W.2d 531, 532 (Iowa
2006). If the robbery verdict is supported by substantial evidence, we will uphold
it. See id. We consider evidence to be substantial if it would convince a rational
jury that the accused is guilty beyond a reasonable doubt. Id. It is not enough
for evidence to raise suspicion or speculation, and we consider all evidence in
the record, both inculpating and exculpating. Id. But in our substantial-evidence
review, we take the evidence in the light most favorable to the State, including all
fair inferences reasonably deduced from the testimony and exhibits. Id.
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We also review for legal error Robinson’s claim that the district court failed
to apply the proper weight-of-the-evidence standard in ruling on his motion for
new trial. See State v. Root, 801 N.W.2d 29, 30 (Iowa Ct. App. 2011).
III. Analysis
Robinson attacks his robbery conviction in two ways. First, he claims the
district court erred in overruling his motion for judgment of acquittal. Second, he
contends the district court applied an incorrect standard to his motion for a new
trial. We will address each claim in turn.
A. Sufficiency of the Evidence
Robinson argues the State fell short of proving the assault element of
robbery. He contends the prosecution did not show he had the specific intent to
assault the store clerk or committed an overt act necessary to complete the
assault.
1. Error Preservation
Before launching our analysis, we must decide if defense counsel’s motion
for judgment of acquittal preserved error as to the issues raised on appeal.
Defense counsel advanced the following argument:
At this time the defendant would move for a judgment of
acquittal . . . . With regard to the charge of robbery in the second
degree, it is required as part of the elements . . . that the defendant
must have committed an assault. Assault is an act with the intent
to cause pain or injury, an act with the intent to result in insulting or
offensive contact, or an act that is done with the intent to provoke
fear of insulting or offensive or painful or injurious contact.
Your Honor, I believe the State’s case has failed to prove the
specific intent with regard to commit an assault on behalf of Mr.
Robinson. . . . There is potentially a theft here. However, the
State’s case fails in regard to the specific intent to commit an
assault and as further broken down with the specific intent to
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commit those specified acts that are set out in the statute that
defines assault.
In response, the prosecutor argued, based on the clerk’s testimony and
the store video, “there is more than sufficient evidence in the record to
demonstrate an assault on any one of those alternative options.” The court
overruled the motion for judgment of acquittal.
On appeal, the State allows that the motion preserved error on the intent
element of assault but contends it was not specific enough to preserve error on
the overt-act element. We find defense counsel’s mention of “specific acts,”
coupled with the prosecutor’s reference to the various assault alternatives,
preserved error as to the court’s ruling on both the intent and overt-acts elements
challenged on appeal. Accordingly, we do not need to consider Robinson’s
alternative claim of ineffective assistance of counsel.
2. Assault Element of Robbery
The jury convicted Robinson of robbery in the second degree after
receiving the following marshalling instruction: “1. On or about January 1, 2014,
the defendant had the specific intent to commit a theft. 2. To carry out his
intention or to assist him in escaping from the scene, with or without the stolen
property, the defendant committed an assault on [the store clerk].” See Iowa
Code § 711.1(1) (2013) (defining robbery). Robinson does not contest the
State’s proof of his specific intent to commit a theft. Instead, he focuses on the
second element—the commission of an assault to carry out his intent to complete
a theft of the cigarettes.
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“We look to the definition of assault in section 708.1 to consider whether a
robbery occurred under section 711.1(1).” Keeton, 710 N.W.2d at 533. Iowa
Code section 708.1 defines assault in three alternatives:
A person commits an assault when, without justification, the
person does any of the following:
(1) Any act which is intended to cause pain or injury to, or
which is intended to result in physical contact which will be insulting
or offensive to another, coupled with the apparent ability to execute
the act.
(2) Any act which is intended to place another in fear of
immediate physical contact which will be painful, injurious, insulting,
or offensive, coupled with the apparent ability to execute the act.
(3) Intentionally points any firearm toward another, or
displays in a threatening manner any dangerous weapon toward
another.
The third alternative is not at issue here because Robinson did not point a
firearm or display a dangerous weapon. The court instructed the jury concerning
the first two alternative definitions of assault, which both “contain specific intent
elements.” See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). The
court defined specific intent for the jury as “not only being aware of doing an act
and doing it voluntarily, but in addition, doing it with a specific purpose in mind.”
In addition to the intent element, assault requires proof of an overt act.
See State v. Heard, 636 N.W.2d 227, 230-31 (Iowa 2001) (defining overt act as
“an open, manifest act from which criminality may be implied” or as “an outward
act done in pursuance and manifestation of an intent or design”); see also State
v. Copenhaver, 844 N.W.2d 442, 451 (Iowa 2014). We consider the existence of
an overt act in light of all the circumstances surrounding it. See Copenhaver,
844 N.W.2d at 451; Heard, 636 N.W.2d at 232. The first two alternatives under
section 708 require different overt acts. Subsection (1) reflects the common law
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crime of battery, an act intended to result in painful physical contact. See State
v. Yanda, 146 N.W.2d 255, 255 (Iowa 1966). Subsection (2) reflects the
common law crime of assault, a more preliminary act intended place another in
fear of immediate physical contact. See id. at 256 (describing an assault as “the
initial stage of an act which is aggravated by a battery”).
The State points to the following overt acts indicative of Robinson’s intent
to assault the clerk: “He lunged over the counter, ripped the cigarette cartons
from [the clerk’s] hand, kept his hand in his pocket making her believe he had a
weapon, and cursed at her demanding more cigarettes.”
Robinson argues the State’s evidence is inadequate to prove an assault.
He first points out that, unlike the perpetrators in Heard and Copenhaver, he did
not disguise his identity at the Kum & Go. See Copenhaver, 844 N.W.2d at 451;
Heard, 636 N.W.2d at 230-31. He also draws a line between grabbing the
cigarette cartons from the clerk’s hands and touching the clerk. Robinson
contends the surveillance video shows he may have been placing the credit card
into his pocket and not gesturing as if he had a gun. Finally, he plays down his
profane demand for more cigarettes as a “mere threat”—insufficient standing
alone to constitute an assault.
We conclude when Robinson’s actions are viewed in context, rather than
parsed out separately, they constitute sufficient overt acts to prove the
commission of an assault. We also find his specific intent to commit an assault
may be inferred from the “circumstances of the transaction and the actions of the
defendant.” See Keeton, 710 N.W.2d at 534.
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Initially, while wearing a mask may contribute to a finding of assault, it is
not a necessary prerequisite.2 Surveillance video and the clerk’s testimony
support a factual finding that Robinson suddenly lunged across the counter
toward the lone employee on duty, grabbing the cartons from her grasp, followed
by her immediate move backward to avoid contact. Contrary to Robinson’s
implication, the fact he did not actually touch the clerk does not foreclose a
finding of assault. See id. at 535 (accepting description of assault as “a direct,
ineffectual act toward the commission of a battery”).
Robinson then placed his hand in his pocket—leading the clerk to believe
he might be armed—and commanded her to turn over more merchandise “right
fucking now.” His actions are comparable to those found to constitute an assault
in other robbery cases. See, e.g., Copenhaver, 844 N.W.2d at 451-52 (walking
quickly toward teller and speaking in a demanding tone of voice using swear
words); Keeton, 710 N.W.2d at 534 (walking toward clerk with outstretched hand,
but pulling hand back to chest before making contact); Heard, 636 N.W.2d at 232
(demanding money from lone store clerk while in close proximity to her, even
without making physical contact).
The clerk testified she was “scared” by Robinson’s aggressive actions and
“felt threatened” believing if she did not “give him what he wants he’s going to
hurt [her].” While we recognize her perceptions are not “dispositive,” we may
properly consider them in determining Robinson’s intent. See Keeton, 710
N.W.2d at 535. We understand Robinson offers an innocent explanation for
2
We note Robinson wore a knit cap, and while consistent with the winter weather, it did
limit the ability to identify him by length, color, or style of hair.
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placing his hand in his pocket, but the State’s case did not hinge on that piece of
evidence alone. See id. (deciding multiple actions and inferences supported
finding of intent element of assault). Viewing the evidence in the light most
favorable to the State, we conclude Robinson carried out overt acts and harbored
the requisite intent to commit assault as an underlying element of his robbery
offense. The court properly decided the evidence merited submission to the jury.
B. Motion for New Trial
In ruling on Robinson’s motion for a new trial under Iowa Rule of Criminal
Procedure 2.24(2)(b)(6), the district court was required to decide if the verdict
was against the weight of the evidence. See State v. Ellis, 578 N.W.2d 655, 659
(Iowa 1998) (remanding for reconsideration of the motion using a weight-of-the-
evidence, rather than a sufficiency, standard). Instead, the district court ruled:
As to the evidentiary support upon which these motions are
based, the Court takes the evidence at trial in the light most
favorable to the State as the nonmoving party. The Court finds that
there was sufficient evidence to allow this jury to conclude that all of
the elements of the offenses, but specifically the robbery offense,
were proven beyond a reasonable doubt.
Robinson asks for a remand with directions to apply the Ellis standard. The
State concedes a remand is necessary. We agree the case must be returned to
the district court for application of the weight-of-the-evidence standard. See
Root, 801 N.W.2d at 31 (noting appellate courts “have repeatedly remanded to
make certain the proper standard was applied”).
CONVICTION CONDITIONALLY AFFIRMED; RULING ON MOTION
VACATED; REMANDED WITH DIRECTIONS.